Elkjer v. City of Rapid City, No. 23341.

• Court: Supreme Court of South Dakota
• Writing for the Court: KONENKAMP, Justice.
• Citation: 2005 SD 45,695 N.W.2d 235
• Decision Date: 30 March 2005
• Docket Number: No. 23341.
• Parties: David ELKJER and Cindi Elkjer, Plaintiffs and Appellants, v. CITY OF RAPID CITY, South Dakota, a municipal corporation, Defendant and Appellee.

695 N.W.2d 235
2005 SD 45

David ELKJER and Cindi Elkjer, Plaintiffs and Appellants,
v.
CITY OF RAPID CITY, South Dakota, a municipal corporation, Defendant and Appellee

No. 23341.

Supreme Court of South Dakota.

Argued on February 16, 2005.

Decided March 30, 2005.

695 N.W.2d 236

Larry M. Von Wald of Beardsley, Jensen and Von Wald, Rapid City, South Dakota, Attorneys for plaintiffs and appellants

Joel P. Landeen, Assistant City Attorney, Jason E. Green, City Attorney, City Attorney's Office, Rapid City, South Dakota, for defendant and appellee.

695 N.W.2d 237

KONENKAMP, Justice

[¶ 1.] Under a Rapid City ordinance, homeowners are responsible for damage to their property caused by service lines extending from the City's water main to the water stop on the homeowner's property. When the homeowners here sued the City to recover for damage caused by a broken service line, the circuit court granted the City's motion to dismiss for failure to state a claim upon which relief can be granted. On appeal, plaintiffs contend that the City's ordinance violates the open courts provision of the South Dakota Constitution as an unwarranted extension of sovereign immunity on the City's proprietary function of operating a waterworks system. Because we conclude that the Legislature has not granted to cities the power to disclaim all liability for water service lines, we reverse the dismissal and decline to reach the constitutional question.

Background

[¶ 2.] Plaintiffs, David and Cindi Elkjer, are residents of the Parkridge area of Rapid City, South Dakota. Their home is connected to the City's waterworks system. On December 26, 2003, a service line failed, causing a large volume of water to escape. The broken line was underneath the city street between the main water line and the curb stop. When the line broke, water flooded plaintiffs' basement causing damage. This service line was constructed of polybutelene plastic, known as Poly-B.

[¶ 3.] The City did not install the service line or require that it be constructed of Poly-B. Service lines from the City's water main to the homes in the Parkridge area were installed by homebuilders and developers. However, builders were required to comply with City regulations on how to properly install these lines and on what materials were acceptable for use. One of the materials the City authorized was Poly-B. Many builders chose to use Poly-B to tap into the water main.

[¶ 4.] After becoming aware of nationwide problems with Poly-B, the City stopped approving its use for water service lines. In 1991, the City began a policy of repairing and replacing all defective Poly-B water service lines on a pro-rata basis. In 2001, the City amended its policy to "repair and replace all leaky polybutelene service lines from the main to the curb stop on a 100 percent basis."¹ From 1991

695 N.W.2d 238

to 2003, the City replaced 370 Poly-B lines.² However, the City "assume[d] no liability for any other damage caused to real or personal property as a result of the breakage of any water line but only for the costs associated with [the] replacement of such line."

[¶ 5.] Plaintiffs brought suit against the City in 2004 to recover for the damage to their property. They alleged that the conduct of the City in operating and maintaining its waterworks was both a negligent and an intentional tort. The City responded with a motion to dismiss for failure to state a claim under SDCL 15-6-12(b)(5). The circuit court granted the motion. On appeal, plaintiffs ask "[w]hether City Ordinance 13.04.420 and City Policy PW XXXXXX-XX violated the `open courts' provision of the South Dakota Constitution, [Art. VI, § 20], by purporting to extend immunity to the City of Rapid City, while acting in the proprietary capacity of operating a waterworks system so as to foreclose a cause of action for negligent acts committed in that capacity."

Analysis and Decision

[¶ 6.] A motion to dismiss under Rule 12(b)(5) tests the law of a plaintiff's claim. A court must deny the motion unless it appears beyond doubt that the plaintiff cannot recover under any facts provable in support of the claim. Fenske Media Corp. v. Banta Corp., 2004 SD 23, ¶ 7, 676 N.W.2d 390, 392-93 (citations omitted). Although these "motions are viewed with disfavor and seldom prevail," on appeal, we will examine them de novo, without deference to the trial judge's decision. Id. (citations omitted).

[¶ 7.] At the outset, we note that the City has not raised the defense of sovereign immunity. SDCL 21-32A-3 provides:

Except insofar as a public entity participates in a risk sharing pool or insurance is purchased pursuant to § 21-32A-1, any public entity is immune from liability for damages whether the function in which it is involved is governmental or proprietary. The immunity recognized herein may be raised by way of affirmative defense.

Id. (emphasis added). In that sovereign immunity is not directly in issue, before we reach a constitutional question, our first inquiry ought to be whether the City has been legislatively granted authority to disclaim all liability for damage caused by service pipes. The City's position is that it is acting under SDCL 9-47-1 and 9-47-6. SDCL 9-47-1 provides in relevant part: "Every municipality may construct, establish, operate, and maintain a system of waterworks and facilities in connection therewith; may regulate the distribution and use of water supplied thereby...." SDCL 9-47-6 provides: "Every municipality shall have power to regulate and provide for the laying of water connections from the city water mains to the lot line, and to assess the cost against the abutting property owner as provided by this title."

[¶ 8.] Cities are empowered to "enact, make, amend, revise, or repeal" ordinances. SDCL 9-19-3. The City enacted Municipal Code Ordinance 13.04.420:

695 N.W.2d 239

A. The water and sewer department will not be responsible for service pipes and fixtures. All service pipes and fixtures on the premises and up to the tap of the city main shall be installed and kept in good working order, and properly protected from frost and other danger, at the expense of the owner or person in possession of the premises served. If such owner or person shall fail to properly repair any leaky service pipe or other apparatus promptly upon receipt of due notice from the director of utilities, his assistants or any person authorized by him, the water may immediately be shut off from the premises and remain shut off until the necessary repairs have been made and a fee as established by the common council for turning the water off and on has been paid. The city shall not be liable for any damage resulting from the breaking of any of the service pipes or apparatus, or for any other damage that may result from shutting off water for repairing or for any other purpose, or for any variation in pressure. No reduction will be made from the regular water rates because of leaky fixtures.

B. If a service line develops a leak between the main and the curb box on any service pipe and is not immediately repaired, the director of utilities may cause

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